concurring:

I join in the opinion, except for section 11(D), on the kidnapping conviction. As to that portion, I would reach the same result, but on a different basis.

I do not think the double jeopardy analysis in the opinion resolves the issue raised by appellant. His argument was that the evidence was insufficient to establish kidnaping, because he did not take the victim away from the place where he attacked her, and because the length of time he held her was not appreciable enough to turn an assault into a kidnapping. I agree with the majority that appellant’s argument should fail, but the reason is that the evidence sufficed, not that the kidnapping conviction is permissible under the double jeopardy clause. We should respond to appellant’s argument by determining what kidnapping is, and holding that reasonable jurors could conclude that Etsitty committed it.

The kidnapping statute applies to one who (1) “unlawfully” (2) “confines ... or carries away” (3) “and holds” (4) “for ransom or reward or otherwise” (5) “any person” (6) within the special territorial jurisdiction of the United States. 18 U.S.C. § 1201 :

At common law, kidnapping was the “forcible abduction or stealing away of a man, woman or child from their own country and sending them into another.” Clark and Marshall, Crimes § 1023 (1967). The federal statute has dispensed with the requirement of asportation. It plainly says “confines ... or carries away.” 18 U.S.C. § 1201 (a). Thus, holding a victim in his or her own home or office by force for an extended period could constitute kidnapping.

Kidnapping, punishable by life imprisonment, is not committed whenever someone is held against their will, as when one person grabs another to do harm, and the victim says “Let me go.” If the holding is part of another crime or attempt, and not of appreciable length, it does not amount to the separate offense of kidnapping. See Robinson v. United States, 388 A.2d 1210 (D.C.1978). Were the statute read more liberally, Congress would have empowered prosecutors at their unfettered discretion to charge the same conduct, such as impeding certain individuals, see 18 U.S.C. § 111 (a)(1), as a mere misdemeanor or a life imprisonment felony. Such unfettered prosecutorial discretion to charge a life imprisonment felony would compel risk-averse people to plead guilty to any misdemeanor and even lesser felonies of which they were innocent. Some prosecutors now use kidnapping as a club every time a boyfriend and girlfriend are driving down the highway arguing, one of them says “let me out of this car right now,” and the driver keeps arguing instead of pulling onto the shoulder.

The statute implies that seizure and confinement of a person is not enough to establish the crime. The statute says “seizes, confines ... and holds ” (emphasis added). Meaning has to be given to the phrase “and holds” beyond the conduct already denoted by “seizes” and “confines.” The Supreme Court has established that the holding must be “for an appreciable period.” “The act of holding a kidnapped person for a proscribed purpose necessarily implies an unlawful physical or mental restraint for an appreciable period against the person’s will and with a willful intent so to confine the victim.” Chatwin v. United States, 326 U.S. 455, 460 , 66 S.Ct. 233, 235 , 90 L.Ed. 198 (1946) (emphasis added).

Etsitty does not argue that his purpose could not fall within the “or otherwise” phrase (“for ransom or reward or other *429 wise”), so we need not consider whether the principle of ejusdem generis limits “otherwise” to purposes such as ransom and reward.

Etsitty argues that no reasonable jury could conclude that he confined and held the victim for long enough, independently of the attempted rape he was initially charged with, to establish kidnapping. He is right, as we have explained, that “an appreciable period” of holding is necessary to establish the offense, and that the holding must be more than an incidental part of some other crime or attempt. If the holding would be of little consequence to a victim, were it not for the crime or attempt of which it was an incidental part, or if it was not for an appreciable period, then treating the seizure and confinement of the victim as kidnapping would exceed the scope of the statute.

The question on a Rule 29 motion is whether any reasonable trier of fact could conclude that the elements of the crime were proved beyond a reasonable doubt. United States v. Manarite, 44 F.3d 1407, 1411 (9th Cir.1995). In this ease, the jury could conclude that Etsitty confined and held the victim for an appreciable period. He lassoed her, dragged her along the ground by a rope around her throat, got off his horse, tripped her and tried to tie her wrists, knocked her down after she got up, sat on her back, tried to gag her, chased her when she got away, and struck her twice with a piece of wood. A jury could conclude that all this abuse took an appreciable length of time. A reasonable jury could also infer that using all this force to keep the victim from getting away was more than incidental to whatever purpose Etsitty had in trying to hold her.